864 F.

2d 1049
12 Fed.R.Serv.3d 954

William RILEY, Appellee,

v.
K MART CORPORATION, Appellant.
No. 88-1439.

United States Court of Appeals,

Third Circuit.
Argued Oct. 21, 1988.
Decided Dec. 29, 1988.
As Amended Jan. 12, 1989.
1

Audrey L. Jacobsen (argued), Charles W. Craven, John J. Coffey, Marshall,

Dennehey, Warner, Coleman and Goggin, Philadelphia, Pa., for appellant.

Drew P. D'Angelo, Joseph P. Stampone, Elizabeth A. Gray (argued),

Philadelphia, Pa., for appellee.

Before HUTCHINSON, SLOVITER, Circuit Judges, and GERRY* , District

Judge.

OPINION OF THE COURT

GERRY, District Judge:
4

This appeal addresses whether a judgment for a plaintiff may be supported by a

set of jury responses directly contradictory to and irreconcilable with a prior set
of answers which, if they had been accepted, would have required a verdict for
the defendant as a matter of law under the applicable comparative negligence
statute. We conclude that it cannot.

I. BACKGROUND
5

On May 17, 1984, William Riley, plaintiff below and appellee here, visited the
store of the K mart Corporation, defendant below and appellant here, located at
4th and Oregon Streets in Philadelphia, Pennsylvania to purchase fishing

equipment. App. at 38. While at the store, Riley went to the store's cafeteria.
While in the cafeteria line, he fell. On January 17, 1986, Riley filed a complaint
against K mart in the United States District Court for the Eastern District of
Pennsylvania, alleging that his fall was caused by ice and water negligently
permitted to remain on the cafeteria floor, and seeking damages for injuries
suffered in the fall. Subject matter jurisdiction existed pursuant to 28 U.S.C.
Sec. 1332; the applicable substantive law was that of the Commonwealth of
Pennsylvania.
6

On February 8, 1988 trial in this case commenced before a jury. At the end of
testimony the next day, the jury was instructed on the relevant legal principles,
including Pennsylvania's comparative negligence law. Specifically, the jury was
instructed that if Riley's negligence "was equal to or exceeded that of the
defendant, then the plaintiff would not win." App. at 202-203.**

The jury was then instructed on how to proceed in answering the questions on
the court's verdict slip, which were propounded pursuant to Federal Rule of
Civil Procedure 49(a) 1 . The jury was not asked to return a general verdict but
only to answer the following questions:App. at 216.

The district court informed the jury that if it affirmatively answered questions 1
and 1(a) and found that K mart's negligence was a legal cause of the accident, it
was to answer question 2. App. at 203. If the jury found that Riley's negligence
also caused the fall, it was to answer question 3 by stating the percentage by
which each party's negligence contributed to the accident. Id.

However, the court did not explicitly instruct the jury not to answer question 4
if Riley's negligence equalled or exceeded K mart's. Rather, the court told the
jury to "find the total amount of damages regardless of whether plaintiff was or
was not partly at fault." App. at 203-04. And near the end of its charge, the
court said:

10 to recapitulate, you only get to the question of damages, of course, if you find
Now,
that the incident happened generally in accord with the way the plaintiff and his
witnesses say that it did. In short, only if you answer the first question "yes" do you
need to answer any of the questions. If you answer the first question "yes", then you
do need to answer questions 2 and 3 and 4.
11

App. at 206. (emphasis added). At the end of the instructions, the jury retired to
begin its deliberations. Thereafter, the jury asked the district court two
questions. The questions and the relevant portions of the court's response are set

out below:
12

Q. Is it the duty of the jury to decide on total amount of damages sustained by

plaintiff as a result of the accident? (e.g., are we to decide on bills other than
those presently outstanding!! Who decides on monetary amount for pain and
suffering?!!)

13

A. If you find in favor of the plaintiff, you are required to decide the total
amount of damages....

14

Q. If we determine that both parties are negligent to some degree, does the
figure for point 4 on our juror verdit [sic] form represent the monetary value at
100%.

15

A. Yes. Your answer to 4 is the total amount of damages. (Of that amount,
plaintiff will actually get a judgment in the lesser sum--i.e., your total award,
reduced by the percentage of plaintiff's own negligence, if any).

16

App. at 214-215.

17

After further deliberation, the jury returned a completed verdict sheet which
read:

18
1.

Verdict
Was K mart negligent?
(a)

2.

Was plaintiff negligent?

(a)

3.

4.

If so, was its negligence a proximate cause of the

accident?

If so, was his negligence a proximate cause of the

accident?

(If you find both parties negligent)

State the percentage by which the negligence of each party
contributed to the accident.
K mart
30%
-------------------------Plaintiff
70%
-------------------------State the total amount of damages sustained by plaintiff as a result
of the accident.
$250,000
------------------------------------------------------

19

App. at 216.

20

Under Pennsylvania law, plaintiff would receive nothing if a verdict was

entered on such answers. Under a "pure" comparative negligence scheme, on
the other hand, plaintiff would be entitled to $75,000 in damages from the
defendant.

21

Over the defendant's objection, the district court sent a note to the jury, seeking
to clarify what it regarded as an inconsistency between the jury's allocation of
responsibility for the accident between the parties and its answer to question 4
which set the plaintiff's damages at $250,000. The note read:

22
"Please
clarify your verdict. As explained in my original instruction (but I forgot to
include it again in answering your questions), if plaintiff's own negligence exceeds
that of the defendant (i.e., more than 50%), plaintiff loses. Your verdict assigns 70%
negligence to plaintiff (i.e., a verdict for defendant ), but also states the amount of
damages. Please clarify."
23

App. at 217. (emphasis in original). Following this communication the jury

revised the verdict slip and lowered Riley's negligence from 70% to 49.9%,
increased K mart's negligence from 30% to 50.1%, and lowered the total
damages from $250,000 to $150,000. App. at 216, 218. The jury was polled
and unanimously assented to the second set of answers. App. at 210. The
district court thereafter entered a judgment for Riley based on the second set of
responses, a judgment which awarded him $75,150 in damages from K mart.
App. at 219, 220.

H. LEGAL ANALYSIS
24

K mart, in both its post-trial motions below and in its briefs here, argues that
the district court abused its discretion by refusing to enter judgment on the first
set of jury answers. The first responses, K mart says, indicate a clear finding on
the liability issue, a finding which, by law, requires a verdict for K mart. The
fact that the jury stated a damages amount did not render its answer inconsistent
since: (1) the court did not tell the jury to state a damages amount only if K
mart was more negligent than Riley and (2) the jury's finding as to the
percentage of the harm caused by K mart was unambiguous.

25

The district court's decision to ask the jury to clarify its intent, K mart contends,
conflicted with the seventh amendment's imperative that "no fact tried by a jury
shall be otherwise re-examined in any court of the United States, than

according to the rule of the common law." Atlantic & Gulf Stevedores, Inc. v.
Ellerman Lines, Ltd., 369 U.S. 355, 359, 82 S.Ct. 780, 783, 7 L.Ed.2d 798
(1962). This imperative, it is argued, requires that "where there is a view of the
case that makes the jury's answers to special interrogatories consistent, they
must be resolved that way." Id. at 364, 82 S.Ct. at 786. Since the jury's first
answers could be viewed as consistent, by reading them as saying that Riley
suffered $250,000 in damages from the fall but that K mart was only 30%
responsible and therefore not under a legal duty to compensate Riley, K mart
believes the Seventh Amendment required the district court to view them that
way and to enter a verdict on those answers. While we do not doubt that the
district court could have permissibly entered judgment in accordance with the
first set of answers,2 that is not the question before us. Rather, we must decide
whether this is the only option consistent with the seventh amendment. We
conclude that it is not.
26

K mart seems to misunderstand that the request for clarification was an attempt,
in accord with the seventh amendment, to find clarity and consistency in the
jury's answers. While the court's instructions were, in the aggregate,
comprehensive and correct, the district court had sufficient cause to believe the
jury was somewhat confused. Though the jury had been correctly instructed on
the Pennsylvania comparative negligence rule, the court's answer to one of the
jury's questions implied that Pennsylvania has a "pure" comparative negligence
scheme. App. at 214-215. Further, while the jury was told to answer the
damages question only if it believed that the "accident happened generally in
accord with the way the plaintiff and his witnesses say that it did," in virtually
the next breath the jury was instructed that if it found that K mart was negligent
by answering yes to question 1, then it did have to answer question 4 and state
the total damages suffered by Riley. App. at 206. Given this background, the
court's decision to seek clarification from the jury was reasonable and in
accordance with the dictates of the seventh amendment and the law in this
Circuit.3

27

Recently we have cited with approval the view of the Court of Appeals for the
Fifth Circuit that:

28would be anomalous to hold that, while a court pursuant to Rule 49(a) must search
It
for a view of the case which will make the jury's answers consistent, it may not
submit an additional interrogatory to the jury to clarify an ambiguity.
29

Morrison v. Frito-Lay, Inc., 546 F.2d 154, 161 (5th Cir.1977), cited in
McLaughlin v. Fellow Gear Shaper Co., 786 F.2d 592, 597 (3d Cir.1986),4
Stanton v. Astra Pharmaceutical Prods., 718 F.2d 553, 575 (3d Cir.1983).5 Both

Stanton and McLaughlin smile on a district judge's use of additional questions

"to obtain clarification from a still-empaneled jury of the meaning of its
answers and verdict." McLaughlin, 786 F.2d at 597. Here, as in McLaughlin,
the district court "did not redetermine the facts as found by the jury but rather
asked the jury to reconsider its decision. In this there can be no Seventh
Amendment violation."6 Id. at 596.
30

The troubling aspect of the district court's handling of the jury answers is not its
decision to seek clarification of the jury's intent but, instead, its acceptance of a
second set of responses totally inconsistent with the original answers. For the
jury's second set of answers made only one thing clear--that the jury intended to
award Riley approximately $75,000 in damages from K mart. After being
reminded of Pennsylvania's rule on comparative negligence, the jury revised its
still warm factual findings to reach the damage award it desired. In a matter of
minutes, the plaintiff's damages dropped by $100,000 and the defendant's
negligence increased by 20%. The district court indicated that the "jury
apparently determined the amount of damages which should actually be
awarded to the plaintiff, and tailored their liability findings to achieve the
desired result." App. at 290.7

31

We do not regard the clarity of the jury's intent as supportive of the district
court's decision to enter a verdict consistent with the second set of responses.
The jury was not asked to determine how much K mart should pay Riley, it was
asked to make factual findings as to the comparative negligence of the parties
with respect to the accident and the total damages Riley suffered in the fall.
While a court will not ordinarily inquire into a jury's thought processes, where
it becomes obvious that a jury has disregarded the duties assigned it to the
extent that its factual findings are but a means to a result a court need not blind
itself to that all too apparent reality. In this case, neither of the two sets of
answers suggest itself as reliable once the jury's intent, as recognized by the
district court itself, is considered.

32

The two sets of answers are consistent only insofar as they are different
arithmetical pathways to the same pre-determined destination. There is nothing
consistent or reconcilable about the directly contradictory factual findings
rendered by the jury here. Riley's negligence is either 70% or 49.9%. He either
suffered $250,000 or $150,000 in damages. There can be no principled
reconciliation of such blatant inconsistencies, since there is no way of judging
which, if either, is the more reasonable. The jury's task was not complex; this is
simply not a case in which the jury rendered inconsistent answers which are
explicable in light of the complexity or multiplicity of the questions asked of it.
Like irreconcilable inconsistencies among answers within a set of interrogatory

answers, Andrasko, 608 F.2d at 947, Guy v. Rudd, 480 F.2d 677 (3d Cir.1973),
the fundamental inconsistencies among answers in the two sets of interrogatory
answers here fatally undermines the judgment entered and mandates a new
trial. See Turchio v. D/S A/S Den Norske Africa, 509 F.2d 101, 106 (2d
Cir.1974); cf. Burger King Corp. v. Mason, 710 F.2d 1480, 1488-89 (11th
Cir.1983); cert. denied, 465 U.S. 1102, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984);
Royal Netherlands Steamship Co. v. Strachan Shipping Co., 362 F.2d 691, 694
(5th Cir.1966) cert. denied, 385 U.S. 1004, 87 S.Ct. 708, 17 L.Ed.2d 543
(1967); C. Wright & A. Miller, 9 Federal Practice and Procedure Sec. 2510
(1971).
33

This outcome is particularly appropriate given the Commonwealth of

Pennsylvania's legitimate interest in seeing its comparative negligence law
applied with full vigor in federal diversity suits in which it is the applicable
substantive law. The manipulation of negligence percentages evidenced in the
jury's two sets of answers is particularly worrisome, since entry of judgment on
the second set of answers seems to fly in the face of the Commonwealth of
Pennsylvania's clearly expressed policy of denying recovery to a plaintiff
whose negligence exceeds that of the defendant. To uphold the judgment
entered below would be to sanction a verdict disrespectful of the applicable
substantive law. We are aware that a properly instructed jury may choose to
award damages to a plaintiff which it actually believes to have been more
negligent than the defendant simply by manipulating the negligence
percentages to allow recovery, in essence by rendering a "compromise verdict,"
and that in the ordinary case such a verdict will sustain a judgment since the
jury's motives will remain mysterious. This reality does not alter our view that
the second set of answers rendered here cannot support the judgment entered.

34

When a court has no rational reason to explain to a defendant why it is

choosing to accept a set of jury answers requiring a verdict for plaintiff over a
set of answers supporting a verdict for defendant, beyond the jury's intention to
give the plaintiff $75,000, it must exercise its discretion and order a new trial.
Picking one set of answers over another could only result, as is the case on the
facts here, in an arbitrary result.

35

Based on the foregoing, the judgment entered below will be vacated and the
case remanded for a new trial.8

Chief Judge, United States District Court for the District of New Jersey, sitting
by designation

* In fact, the law in Pennsylvania precludes recovery only by a plaintiff whose

negligence is greater than the defendant's, 42 Pa.Cons.Stat.Ann. Sec. 7102(a)
(Purdon 1982), as the district court correctly stated elsewhere in the charge.
The district court's misstatement of the law in this part of the charge is not
relevant to any issue on appeal

Neither party has addressed the issue of whether the verdict slip sent to the jury
in this case was tendered under Rule 49(a) or Rule 49(b). Nor did the district
court indicate under which section of the rule it was proceeding. For purposes
of this appeal, we need not hinge our decision on the applicability of Rule 49(a)
as opposed to Rule 49(b) since, in either case, the district court retains the
discretion to seek clarification from the jury of inconsistent responses. Stanton
v. Astra Pharmaceutical Prods., 718 F.2d 553 (3d Cir.1983). In Stanton, we
held that there is no "reason in logic or policy to distinguish between Rule 49(a)
and Rule 49(b) questions" when considering the propriety of resubmitting
questions to a still-empaneled jury. Id. at 575. Rule 49(b), of course, expressly
authorizes a trial judge to ask the jury to reconsider its answers if one or more
is inconsistent with the general verdict it returns
Here, the jury was asked to answer four questions, none of which explicitly
calls for a general verdict. The district court's reaction to the answers given by
the jury, discussed infra, indicates that it perhaps intended question 4, the
damages question, to be in essence one asking the jury to return a general
verdict. On its face, however, question 4 is not such a question. Further, this
court has treated a similar set of interrogatories under Rule 49(a), Andrasko v.
Chamberlain Mfg. Corp., 608 F.2d 944 (3d Cir.1979), as have other circuits.
See e.g., Willard v. The John Hayward, 577 F.2d 1009 (5th Cir.1978).

Was K mart negligent? ____

(a) If so, was its negligence a proximate cause of the ____
accident?

Was plaintiff negligent? ____

(a) If so, was his negligence a proximate cause of the ____
accident?
(If you find both parties negligent)

State the percentage by which the negligence of each party

contributed to the accident.

K mart _________________________
Plaintiff _________________________
4

State the total amount of damages sustained by plaintiff as a result

of the accident.
$_____________________________________________________

In a case involving jury answers similar to the first answers returned in this
case, the Court of Appeals for the Fifth Circuit affirmed a district court's
decision that a set of jury interrogatories was consistent. Gallimore v. Missouri
Pac. R. Co., 635 F.2d 1165 (5th Cir.1981). The Gallimore court held that the
jury's findings that the defendant was not negligent and that set plaintiff's
negligence at 80% were not inconsistent with its finding that $60,000 would
adequately compensate the plaintiff since the form of the district court's
interrogatories was such that the jury could have thought that it should answer
the damages question regardless of whether it felt that defendant should
compensate the plaintiff. See also Willard, 577 F.2d 1009

Much of the confusion which surrounded the jury's first set of responses could
have been obviated by clearer interrogatories. Had the verdict slip stated that
question 4 was not to be answered unless the defendant's negligence exceeded
the plaintiff's, the apparent inconsistency which troubled the district court
would not have arisen

In McLaughlin the jury in a products liability action was asked to answer five
interrogatories and render a general verdict pursuant to Rule 49(b). Plaintiff was
injured while using a hobbing machine sold to his employer by defendant
Fellows Gear Shaper Company ("Fellows"). Plaintiff had been standing on the
machine when the accident occurred, "setting-up" the machine
The jury returned a general verdict for the plaintiff consistent with its findings
that defendant Fellows had delivered a defective hobbing machine and that the
defect proximately caused plaintiff's injury. The general verdict was, however,
inconsistent with its findings that it was not foreseeable that employees would
stand on the machine during the "setting-up process" and that plaintiff had
assumed the risk.
The district court resolved these inconsistencies by submitting two additional
interrogatories to the jury, directed at whether the jury believed that the fact

that plaintiff stood on the machine was a substantial factor in causing the
accident or the sole cause. The jury answered that the fact that plaintiff stood
on the machine was neither the sole cause nor a substantial factor in causing the
accident. We held, on appeal, that the district court did not abuse its discretion
under Rule 49(b) by submitting additional interrogatories, nor did the court err
by setting aside the jury's finding on assumption of the risk as contrary to the
evidence.
5

Stanton was a products liability suit in which the jury was asked to return a
verdict by way of answers to twenty-seven "special questions". The jury
returned with an award for the plaintiff against a defendant pharmaceutical firm
and found the firm negligent with respect to several of the plaintiff's claims.
However, several of the jury's answers, particularly those regarding causation,
were inconsistent with its damage award. The trial judge resubmitted the
questions to the jury and the jury changed its inconsistent responses so that they
supplied the causal finding necessary for liability. On appeal the defendant
attacked the resubmission as an abuse of discretion. We held that under either
Rule 49(a) or 49(b) the district court retained the discretion to resubmit the
questions to obtain clarification from the jury
However, we also held that the district court abused its discretion in ordering a
partial new trial as to damages only (in light of a post-trial decision of the
Pennsylvania Supreme Court which changed the applicable law of damages).
We considered the inconsistency among the jury's special question answers as a
significant factor in our analysis of whether the new trial as to damages only
was unjust. While the inconsistent answers may have been reconcilable enough
to sustain a jury verdict against the defendant, they did, in concert with a
relatively small damage award, suggest that the jury reached a compromise
verdict. In such a situation a full new trial was required since it would work an
injustice to retry the damages issue alone when the verdict was the product of
jury compromise.

K mart has asserted that the note the district court sent the jury was unduly
suggestive and coercive. The note sent by the district court did not, in our view,
suggest that the jury should award damages to the plaintiff Riley, but merely
asked the jury to clarify its intent, in light of a legal principle which the court
had not adequately emphasized. Though a district court should use caution
when communicating with a jury on particular aspects of its function, lest it
focus the jury too narrowly on a specific factor, ultimately "the form and extent
of supplemental instructions are within the sound discretion of the court."
Beardshall v. Minuteman Press Int., Inc., 664 F.2d 23, 28 (3d Cir.1981). The
form and content of the district court's communication here does not go beyond
permissible bounds; it is not coercive nor does it suggest that the court thought

plaintiff should win. It does suggest that Riley could not collect damages unless
he was less negligent than K mart. However, any instruction by the court
reiterating this legal point would have made clear to the jury that as their
answers stood, plaintiff could not have collected damages. The jury was
persuaded only insofar as they had originally intended to make K mart
compensate the plaintiff for some of his damages. In short, the note did not
impermissibly exceed the bounds of the district court's discretion
7

The district court also noted that "[i]t is reasonably clear that the jury intended
to award the plaintiff approximately $75,000 in damages, and believed that its
first attempt would achieve that result." App. at 289

We decline to address K mart's other arguments. We do, however, wish to

express our concern about one issue brought to our attention due to the
probability of its recurrence on retrial. At trial, the court allowed the plaintiff
and Albert Staples, one of the plaintiff's witnesses, to testify as to what
someone said shortly after plaintiff's fall in the K mart cafeteria. Each testified
that someone said, "I told you half an hour ago to clean that up." App. at 32.
This testimony bolstered plaintiff's case insofar as it supported plaintiff's theory
that that there was ice and water on the cafeteria floor at the time of the
accident and that K mart knew about it
Counsel for K mart rendered a general objection on each occasion, never
stating specific grounds, Fed.R.Evid. 103(a)(1), which were overruled. App. at
32, 42. The declarant was never identified, beyond the plaintiff's testimony that
he was a young man, twenty-two or twenty-three years old, wearing a shirt and
tie, who looked like an "assistant manager." App. at 42. Balanced against
plaintiff's testimony was testimony by a K mart cafeteria employee that no male
employees were in the cafeteria at the time of the fall. App. at 157.
The district court denied appellant's motion for a new trial based on the
admission of this testimony stating:
the evidence was plainly admissible to show the state of mind of the declarant.
The evidence was received, not to establish the truth of what was stated--that
the instructions had been given--but to show that the declarant, at least, had
adequate notice of the alleged dangerous condition. It bears mention, also, that
the defendant's witnesses all agreed that the problem of ice spillage from that
particular machine had been a recurring phenomenon for many months before
the accident (their position was that the spilled ice had been cleaned up shortly
before plaintiff's fall). The challenged evidence had very little significance in
the context of the trial.
App. at 290-291.

Unfortunately, the record does not indicate that the statement was offered to
show the declarant's state of mind rather than as an out of court statement
"offered in evidence to prove the truth of the matter asserted." Fed.R.Evid.
801(c). Nor, apparently, was a limiting instruction requested, Fed.R.Evid. 105,
or given instructing the jury to consider this statement only insofar as it bore on
the declarant's state of mind, though this would have been the better practice
despite counsel's failure to properly state the grounds for its objection. Cf.
United States v. Parry, 649 F.2d 292, 295 (5th Cir.1981).
Further, while we are chary to comment on the relevancy of this testimony,
given the district court's great discretion in this area, on retrial the testimony's
relevance will require close scrutiny due to the failure of the plaintiff to identify
the declarant as a K mart employee or agent. This failure also undermines the
potential admissibility of this statement under the vicarious admission provision
of Fed.R.Evid. 801(d)(2)(D), since admissibility, under this provision requires a
showing, by a preponderance of the evidence, under Fed.R.Evid. 104(a) that the
statement was made by an agent acting "within the scope of his ...
employment." Fed.R.Evid. 801(d)(2)(D); Zenith Radio Corp. v. Matsushita
Elec. Co., Ltd., 505 F.Supp. 1190, 1238 (E.D.Pa.1980), rev'd in part on other
grounds, 723 F.2d 238 (3d Cir.1983) rev'd on other grounds, 475 U.S. 574, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986); 1 Weinstein's Evidence p 104 at 104-38
(1988). Here, it is doubtful that plaintiff could have made such a showing.
Given that this testimony was the only evidence suggesting that K mart knew
that there was ice and water on the floor at the time of plaintiff's fall, its
admissibility should be carefully addressed on retrial. We are not prepared,
however, based on the scant record before us, to say that the district court
abused its discretion in admitting this testimony.